CASE VICTORIES

Guides

Illinois orders of protection are serious business. Orders of protection require you to cease all contact with the person holding the order. People charged with an order of protection don’t always realize what they can and cannot do in order to keep the order of protection from turning into a criminal conviction. It’s critical for your future to understand the power and implications of an order of protection.

Civil and Criminal Orders of Protection Types

There are “civil” and “criminal” orders of protection. Typically, if you are charged criminally (arrested and charged with a battery for example), the State will also secure a criminal order of protection for the victim. But civil orders of protection can result in criminal charges if they are violated.

With a civil order of protection, you have to be careful that you not only stop communicating with the other party who secured the order, but you cannot contact their family, friends, or in any way harass that person. Your failure to know exactly what is permitted can be devastating. For example, if you violate the order of protection, the police will arrest you and your civil order has just turned criminal. That is what happened to Donald Gauger, Jr.

Even Facebook Messages Can Lead to a Criminal Conviction

Following a bench trial, defendant, Donald R. Gauger Jr., was convicted of violating an order of protection (720 ILCS 5/12-3.4(a) (West 2012)), stalking (id. § 12-7.3(a)(2)), and aggravated stalking (id. § 12-7.4(a)(3)). Gauger was sentenced to five years’ imprisonment for aggravated stalking. The aggravated-stalking charge alleged that he engaged in a course of conduct directed at Crystal Carswell that he knew would cause a reasonable person emotional distress while Carswell had an order of protection against him.

At trial, Carswell testified that she had been married to Gauger and that they had two children together. She had an active order of protection against him. On September 9, 2012, she got a Facebook message from someone she knew in high school, asking if she had recently sent him a new “friend” request. After looking at the profile the friend told her about, she realized that an old Facebook account of hers had been reactivated.

At about the same time, she received two Facebook messages that she knew immediately that her ex-husband had sent. The first message asked about meeting for a date and the second wished her a happy birthday. The messages were from a Facebook account using the name “Ed Kloog.” She knew Ed Kloog, an older man who did not live in Illinois at the time. She contacted him about the messages. Kloog responded that he had only one Facebook account and that he was upset that someone was apparently using his name. Carswell then contacted the De Kalb police and filed a complaint against her ex-husband for sending the messages.

Fictitious Facebook Activity Results in Emotional Distress

The fictitious Facebook activity frightened Carswell. She felt worried every time she left her building. She would constantly look over her shoulder while driving into town, worried that her ex-husband or someone he knew was “going to pop up.” She was upset that defendant was “trying to be friends with [her] friends that [she] went to high school with just to find out some things about [her].”

A subpoena was issued to Facebook to obtain the Internet Protocol (IP) address for the fictitious Ed Kloog account. Facebook provided two different IP addresses, and after the police investigated, they were able to determine that one of the addresses belonged to Gauger’s computer. Using this information, the police obtained a search warrant for Gauger’s residence. His computer was seized during the search, and a forensic analysis revealed an image identical to the image used as the profile picture on the fictitious Ed Kloog Facebook account. A compact disc near that computer contained a Facebook post by Carswell and a picture of one of Carswell’s children. Police also found a three-ring binder with a page labeled “Facebook” containing four or five fictitious Facebook pages, passwords, and emails.

The computer had a number of photos and emails pertaining to Carswell and her family. The forensic analysis also turned up references to Ed Kloog and a copy of one of the photos associated with the fictitious account. The computer also contained a copy of a photo of Carswell in a Kohl’s dressing room. Carswell said that she posted the picture on her Facebook page in November 2012. The computer also contained a copy of a Carswell family photo taken at J.C. Penney’s that Carswell posted on Facebook.

The court found Gauger guilty on all three charges. The court found that defendant “knowingly engaged in a course of conduct directed at Crystal Carswell and knew or should have known that this course of conduct would cause a reasonable person to suffer other emotional distress.” The court specifically found that the evidence “overwhelmingly establishes that the defendant directly or indirectly through third parties monitored and communicated to or about Ms. Carswell through his Internet activities.” The court merged the order-of-protection and stalking counts into the aggravated-stalking count and sentenced defendant to five years’ imprisonment.

A “Course of Conduct” May Include Electronic Communication

The trial court looked at what defines “course of conduct,” as it related to the order of protection. The court found that “2 or more acts, including but not limited to acts in which a defendant directly, indirectly, or through third parties, by any action, method, device, or means follows, monitors, observes, surveils, threatens, or communicates to or about, a person, engages in other non-consensual contact, or interferes with or damages a person’s property or pet. A course of conduct may include contact via electronic communications.” Stalking becomes aggravated stalking if the defendant, inter alia, violates an order of protection.

Defendant contends that his Facebook messages to Carswell constituted “communicat[ing] to or about” her. The trial court here specifically found that defendant monitored Carswell. The stalking statute does not define “monitoring,” but the dictionary defines “monitor” as “to watch, keep track of, or check usu. for a special purpose.” Merriam-Webster’s Collegiate Dictionary 750 (10th ed. 2001).

Even without the Facebook messages, the evidence showed that defendant created at least one fictitious Facebook account in the name of Carswell’s friend, downloaded pictures of her and her family, and apparently even obtained mail addressed to her. This course of conduct satisfies that definition, and the court reasonably found that defendant “knew or should have known that this course of conduct would cause a reasonable person to suffer other emotional distress.”

When in Doubt Do Not Contact!

When in doubt about what types of communications would be allowed, err on the side of caution and don’t contact. If the court determines that your communication is a violation, it results in criminal punishment. It isn’t worth it. When an order of protection has been filed against you, take all precautions to avoid the person with the order, including any friends or family. Contacting them can lead to your criminal prosecution.

At Anderson & Boback, we’re passionate about solving complex family law issues for our clients and their families throughout Chicago and the greater Chicagoland area.Contact us today for a confidential consultation when you have questions or concerns about family law matters including orders of protection.

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